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SADC court says Zim government undermining rule of law

By Alex Bell
14 January 2011

The human rights Tribunal of the Southern African region has ruled that the Zimbabwe government is undermining the rule of law, by refusing to pay compensation to nine victims of state sponsored political violence and torture.

The Southern African Development Community (SADC) Tribunal last month ruled in favour of Barry Gondo and eight others, who successfully sued the State in the Zimbabwe High Court after being beaten and tortured by security agents. The group argued in the SADC Tribunal that the government was refusing to pay the damages ordered by the High Court, in their cases dating back to 2003 and 2007.

The judgment was handed down by Justice Arrirange Govindasamy Pillay in the Windhoek Tribunal. The judgement said that the government was violating the founding principles of the regional bloc, the SADC Treaty, by refusing to pay the compensation.

“We hold, therefore...that the Respondent (government) is in breach of Articles 4 (c) and 6 (1) of the treaty in that it has acted in contravention of various fundamental human rights, namely the right to an effective remedy,” the Tribunal ruled, and “the right to have access to an independent and impartial court or tribunal and the right to a fair hearing.”

The ruling comes as an important victory for the rule of law in Zimbabwe, where the State has displayed a decade long disregard for Court orders. The Zimbabwe Human Right NGO Forum, which led the case before the Tribunal last year, said the ruling is a “progressive.” The group added that it supports the opinion of civil society that one of Zimbabwe’s main challenges is “the absence of the rule of law.”

“The Forum implores Government to respect the rule of law and to honour its obligations under international law in order to ensure the protection of its citizens’ right to an effective remedy and equality before the law,” the group said in a statement.

Political analyst Professor John Makumbe told SW Radio Africa on Friday that the ruling is an encouraging sign that “perhaps we have entered a fascinating year with efforts being made to right the wrongs of the past.” Makumbe however added that “the crux of the matter now,” is whether or not the government will abide by the court’s ruling, after previously dismissing the court as “null and void.”

“I doubt they will abide by it,” Makumbe said. “They will only go along with verdicts that it finds not threatening to ZANU PF.”

The ruling comes as the Tribunal remains effectively suspended and not able to take on any new cases, after SADC leaders decided last year to review the role, functions and mandate of the court. This decision was a result of Zimbabwe refusal to honour the Tribunal and its ruling that Mugabe land grab campaign is unlawful. The Tribunal ruled in 2008 that the exercise was unlawful and discriminatory, and ordered the Zimbabwe government to protect the farmers, their rights to their land, and pay compensation for land already seized.

But in Zimbabwe the Tribunal has been openly snubbed by the government, with Mugabe and Justice Minister Patrick Chinamasa declaring that the Tribunal’s rulings were ‘null and void’. The High Court then ruled that the Tribunal’s orders on land reform have no authority in Zimbabwe, despite the country being a signatory to the SADC Treaty.

Zimbabwe’s open contempt of court was eventually raised before SADC leaders at a summit in August last year, in the hope that the regional leadership would deal with Zimbabwe as an errant member state. Instead, the SADC leaders resolved to review the Tribunal, a move that legal experts say is an effective suspension of the court. In a legal opinion drafted and endorsed by seven leading national, regional and international legal organisations, SADC leaders have now come under fire for having “deliberately undermined the Tribunal by violating regional laws and acting unconstitutionally.”

“SADC leaders have unlawfully ensured that the Tribunal can no longer function, leaving citizens without legal remedy at the regional level,” said Nicole Fritz, Director of the Southern Africa Litigation Centre.
“We are also very concerned that the decision to sabotage the Tribunal was taken in bad faith, to appease Zimbabwe and to ensure that it did not have to comply with a series of rulings related to land seizures,” said Fritz.

Makumbe meanwhile said that Zimbabwe’s refusal to honour the Tribunal is “a major threat to the cohesion of the region, because it makes the Tribunal superfluous.”

“I can’t see how any other member state will abide by the Tribunal if Zimbabwe disregards it and gets away with it,” Makumbe said.

To see the judgement click here

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